Citation NR: 9609446
Decision Date: 04/03/96 Archive Date: 04/16/96
DOCKET NO. 93-14 534 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an increased disability evaluation for
arthritis of the right hip and arthritis of the left hip,
both currently rated as one disability, 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Mark D. Chestnutt, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1958 to April
1978.
This appeal stems from a July 1991 decision of the RO that
denied an increased disability evaluation for osteoarthritis
of the hips. In March 1995, the Board of Veterans’ Appeals
(Board) remanded this case for further development, including
a VA examination. The necessary development has been
completed and the Board finds that this case may now be
decided.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected arthritis of
the hips is more disabling than recognized by the 10
evaluation currently in effect. He maintains that he has
pain most of the time and that he has had exacerbations of
the arthritic process in his hips. He has said that he could
not drive a vehicle which requires a clutch because he could
not pick his leg up to push down the clutch.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports granting
a 10 percent disability evaluation for arthritis of the right
hip as well as granting a 10 percent disability evaluation
for arthritis of the left hip.
FINDINGS OF FACT
1. All relevant evidence necessary for the disposition of
the veteran’s appeal has been obtained.
2. Arthritis in the right and left hips is primarily
manifested by decreased hip flexion bilaterally during
ambulation.
CONCLUSIONS OF LAW
1. The schedular criteria for a 10 percent disability
evaluation for arthritis of the right hip are met. 38
U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1995); 38 C.F.R.
§§ 3.321, 4.1-4.14, 4.40, 4.41, 4.45, 4.59, 4.71a , Codes
5003, 5251, 5252, 5253 (1995).
2. The schedular criteria for a 10 percent disability
evaluation for arthritis of the left hip are met. 38
U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1995); 38 C.F.R.
§§ 3.321, 4.1-4.14, 4.40, 4.41, 4.45, 4.59, 4.71a, Codes
5003, 5251, 5252, 5253 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board of Veterans’ Appeals (Board) finds that
the veteran’s claim is “well grounded” within the meaning of
38 U.S.C.A. § 5107 (West 1991 & Supp. 1995). The Board is
also satisfied that all relevant evidence has been properly
developed and that there is no further duty to assist the
veteran in order to comply with 38 U.S.C.A. § 5107.
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the service
medical records and all other evidence of record pertaining
to the history of the disability in question have been
reviewed. Nothing in the historical record suggests that the
current evidence of record is not adequate for rating
purposes. Moreover, this case presents no evidentiary
considerations which would warrant an exposition of the
remote clinical histories and findings pertaining to this
disability. Although the Board must consider the whole
record, those documents created in proximity to the recent
claim are the most probative in determining the current
extent of impairment. See 38 U.S.C.A. § 5110(b)(2) (West
1991 & Supp. 1995).
A review of the service medical records reveals that the
veteran complained of pain in the lower sacroiliac area in
January 1978.
The veteran was examined by the VA in January 1979. A
radiological report taken at that time indicates that there
was slight narrowing of the left sacroiliac joint, and that
the hip joints were preserved--although there was slight
sclerosis superiorly indicating early osteoarthritic change.
By rating decision in May 1979 service connection was
established for osteoarthritis of the left and right hip
joints as one disability, and an evaluation of 10 percent was
assigned.
The veteran has been treated for various disabilities over
the years, including bilateral hip pain. A February 1991 VA
x-ray report indicates that there was minimal spurring of the
acetabular roof on the right, and a sclerotic area seen in
the left innominate bone medially. It might have represented
a bone island, but a circumscribed osteoblastic lesion could
not be excluded. The impression included minimal
degenerative changes associated with the right acetabular
roof. A subsequent physical examination in February 1991
showed a sciatic component involving the left side. There
was local tenderness at the sacroiliac joint, left, and also
tenderness of the sciatic notch on the same side. A straight
leg raising test appeared to be positive on that side as
well. The physician considered this to be a sciatic pain
syndrome rather than degenerative joint disease in both hips.
A VA x-ray report from August 1991 indicates that there was
no evidence of hip abnormality at that time, although there
was a 2-centimeter irregular sclerotic focus within the left
iliac wing. This may have represented a benign bony island
or a bony infarct, or possibly blastic metastasis.
In January 1992 the veteran was provided a hearing at the RO.
When asked about his hips, he testified hat he had pain most
of the time and had trouble using his left leg particularly.
He said that he could not drive a vehicle which requires a
clutch because he could not pick his leg up to push down the
clutch. He indicated that he could only lift his left leg
upward or forward one to one and a half feet before he would
experience pain. Regarding his right leg, he said that it
would hurt, going from “side to side.” He agreed that he had
had exacerbations of the arthritic process of his hips.
A VA outpatient report from August 1992 indicates that the
veteran was able to perform straight leg raising to 45
degrees.
The veteran was again examined by the VA in June 1995. At
that time the veteran reported that his bilateral hip pain
had progressed over the years since service, but that he was
able to ambulate without the aid of a cane or crutches. On
examination the right hip had approximately 130 degrees of
flexion, 45 degrees of extension, 30 degrees of abduction,
and about 45 degrees of adduction. He could internally
rotate approximately 30 degrees and externally rotate his
right hip 50 degrees. These movements were associated with a
mild degree of muscular back pain, but did not produce thigh
or groin pain. Examination of the left hip revealed 125
degrees of flexion, 30 degrees of extension, 30 degrees of
abduction, and 45 degrees of adduction. He was able to
internally rotate approximately 30 degrees with mild
complaints of left groin pain. He could externally rotate
approximately 50 degrees without complaints. He did have
decreased hip flexion bilaterally during ambulation. X-rays
were reported as revealing only a slight decrease in joint
space, and no obvious osteophyte formation. The diagnosis
was of mild degenerative joint disease involving bilateral
hips. In a follow-up interview in August 1995, it was
reported that the veteran was employed as a coal miner after
service, was laid off in 1981, and was not rehired. He also
said that he could not do this work because of his condition.
Disability evaluations are based upon the average impairment
of earning capacity resulting from a disability. 38 U.S.C.A.
§ 1155. The arthritis in both hips is currently evaluated as
one disability, 10 percent disabling, under the provisions of
38 C.F.R. § Part 4, Code 5003. This evaluation contemplates
x-ray evidence of degenerative arthritis involving two major
joints, but with no limitation of motion. The law also
provides, however, that when the limitation of motion of the
specific joint or joints is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added, under Diagnostic Code 5003. 38 C.F.R. § 4.71a.
(Emphasis added). Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. Id. One hip is a
major joint under 38 C.F.R. § 4.45. Applying these laws and
regulations to the particular facts of this case, the Board
finds that a 10 percent rating is warranted for arthritis of
the right hip and a separate 10 percent rating is warranted
for arthritis of the left hip.
During the June 1995 VA examination, arthritis of the hips
was diagnosed, and the veteran showed decreased hip flexion
bilaterally during ambulation. Limitation of motion for his
hips, however, did not meet the criteria the appropriate
diagnostic codes under 38 C.F.R. § 4.71a, Codes 5251,5252,
5253 for a compensable rating. To do so, there would have to
be limitation of extension of the thigh to 5 degrees, or
limitation of flexion of the thigh to 45 degrees, or
limitation of adduction to where the veteran could not cross
his legs. Id. None of this was shown during the June 1995
VA examination. Therefore, only the minimum 10 percent
evaluation applies to each major joint affected. 38 C.F.R.
§ 4.71a, Code 5003. The Board finds that each hip is to be
evaluated as being 10 percent disabled due to degenerative
arthritis.
The criteria for a higher rating have not been met for
either the right or left hip. As noted, the veteran does not
meet the requirements for even a compensable evaluation under
Codes 5251, 5252 or 5253, much less a higher evaluation.
Although there was pain on motion regarding the right hip
during examination, it was muscular pain to the back--not to
the right thigh or groin. See 38 C.F.R. §§ 4.10, 4.40, 4.45,
4.59. While movement of the left hip was accompanied by
complaints of left groin pain, it was only mild and so
nothing more than the minimum compensable rating has been
demonstrated for the left hip. Id. The veteran’s other
complaints of pain, such as during his hearing, were
subjective, and have not been objectively demonstrated.
38 C.F.R. § 4.71a.
In reaching its decision, the Board has considered the
complete history of the disabilities in question as well as
the current clinical manifestations and the effect these
disabilities may have on the earning capacity of the veteran.
38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original
onset of these disabilities has been reviewed and the
functional impairment that can be attributed to pain or
weakness has been taken into account. 38 C.F.R. § 4.10,
4.40, 4.59. Furthermore, the Board finds that in this case
the disability picture is not so exceptional or unusual so as
to warrant an evaluation on an extraschedular basis. It has
not been shown that arthritis of the right hip or of the left
hip has caused marked interference with employability or
necessitated frequent periods of hospitalization. 38 C.F.R.
§ 3.321(b)(1). While the veteran indicated that his
“condition” has prevented him from working at a previously
held job, such functional impairment has not been objectively
demonstrated that would indicate the veteran is unemployable.
The criteria for an evaluation greater than that assigned
have not been met or approximated as explained above. 38
C.F.R. § 4.7.
With respect to this determination, the evidence is not so
evenly balanced so as to raise doubt as to any material
issue. 38 U.S.C.A. § 5107.
ORDER
Entitlement to a 10 percent disability evaluation for
arthritis of the right hip is granted.
Entitlement to a 10 percent disability evaluation for
arthritis of the left hip is granted.
CHARLES E. HOGEBOOM
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
- 2 -